A. Statement of Purpose

These guidelines are intended to guide every Justice Department law enforcement officer, investigator, prosecutor, victim/witness professional, and staff member in the proper and appropriate treatment of child victims and witnesses in matters under their responsibility. At all times, Justice Department personnel should be aware of the trauma child victims and child witnesses experience when they are forced to relive the crime during the investigation and prosecution of a criminal case, and particularly while testifying in court. A primary goal of such officials, therefore, shall be to reduce the trauma to child victims and witnesses caused by their contact with the criminal justice system. To that end, Justice Department personnel are required to provide child victims with referrals for services, and should provide child witnesses with services referrals.

Commentary

Children may be the direct victims of a variety of Federal crimes including physical abuse, sexual abuse, exploitation, and pornography. Additionally, children witness a broad range of Federal crimes. Too often in the past the criminal justice system has not paid sufficient attention to the needs and welfare of child victims and witnesses causing serious consequences. Contact with the system aggravated the trauma that the child had already experienced making it more difficult for the child to participate in the investigation and prosecution of the case and ultimately making it more difficult to prosecute the case.

The basic victims' rights laws discussed elsewhere in these guidelines apply equally to child victims. In addition, Congress has enacted laws to specifically address the issues raised by children's participation in the criminal justice process. Congress enacted the Victims of Child Abuse Act of 1990 (VCAA) in response to an alarming increase in reports of suspected child abuse made each year. To address this nationwide emergency, the 1990 VCAA requires certain professionals to report suspected cases of child abuse under Federal jurisdiction and amends the United States Criminal Code to ensure protection of children's rights in court and throughout the criminal justice system. (see 18 U.S.C. § 3509) Article VI of these guidelines shall serve to ensure full implementation of the VCAA by all investigative, prosecutorial, and correctional components of the Department of Justice. Guidelines dealing with the reporting of suspected child abuse appear in Article I.

B. General Guidelines

1. Privacy Protections for Child Victims and Witnesses (18 U.S.C. § 3509(d))
   1. Confidentiality of Information. All Government employees connected with a criminal proceeding involving a child victim or witness shall keep all documents that disclose the name or any other information concerning the child in a secure place and shall disclose the documents only to persons who by reason of their participation in the proceeding have reason to know the information. (18 U.S.C. § 3509(d)(1))

   2. Filing Under Seal. Any Justice Department employee filing papers in court that disclose the name of or any other information concerning a child shall file the papers under seal. (see procedure laid out in 18 U.S.C. § 3509(d)(2))

   3. Protective Orders. Federal prosecutors can seek protective orders if necessary to protect the privacy of the child. (see 18 U.S.C. § 3509(d)(3)) (see also 18 U.S.C. § 3509(b)(2)(E) (for protective orders in the context of videotaped depositions)) Prosecutors should be aware that "any person" may seek such an order.

   4. Sanctions for Violating the Disclosure Rules. A knowing or intentional violation of the privacy protection accorded children in 18 U.S.C. § 3509 is a criminal contempt punishable by not more than one year's imprisonment, or fine, or both. (18 U.S.C. § 403)

   5. Disclosure to Certain Persons. Title 18 U.S.C. § 3509 does not prohibit disclosure of a child's name or other information about the child to the defendant, the attorney for the defendant, and others listed in the statute including anyone to whom, in the opinion of the court, disclosure is necessary to the welfare and well-being of the child. (18 U.S.C. § 3509(d)(4))

2. Guardian Ad Litem (18 U.S.C. § 3509(h))
   1. Appointment. To protect the best interests of the child, the court may appoint a guardian ad litem for a child who was a victim of, or a witness to, a crime involving abuse or exploitation. (18 U.S.C. § 3509(h)(1))

   2. Attendance at Proceedings. The court-appointed guardian ad litem may attend all the depositions, hearings, and trial proceedings in which a child participates, and make recommendations to the court concerning the welfare of the child. (18 U.S.C. § 3509 (h)(2))

   3. Access to Documents. The guardian ad litem may have access to all reports, evaluations, and records, except attorney's work product, necessary to effectively advocate for the child. Because of the grand jury secrecy provisions contained in Federal Rule of Criminal Procedure 6(e), the extent of a guardian ad litem's access to grand jury materials is limited to the access routinely provided to victims and their representatives. (18 U.S.C. § 3509(h)(2))

   4. Duties. The guardian ad litem shall marshal and coordinate the delivery of resources and special services to the child. (18 U.S.C. § 3509 (h)(2))

   5. Testimony. The guardian ad litem shall not be compelled to testify in any court action or proceeding concerning any information or opinion received from the child in the course of serving as a guardian ad litem. (18 U.S.C. § 3509(h)(2))

   Commentary

   Although 18 U.S.C. § 3509(h) by its terms only applies to cases where the child is a victim of or witness to abuse or exploitation, the appointment of a guardian ad litem is a practice that the prosecutor may want to ask the court to extend by analogy to all cases in which a child is a victim of or witness to a crime. The guidelines recommend that Federal prosecutors urge courts to appoint guardians ad litem for all children who are victims of or witnesses to any type of crime. If possible, it is also a good practice for the prosecutor's office to appoint an advocate to assist the child with navigating the criminal justice process.

3. Extension of Child Statute of Limitations (18 U.S.C. § 3283). The statute of limitations for offenses involving the sexual or physical abuse of a child under the age of 18 years is extended until the child reaches the age of 25 years.

1. Referral for Medical Exam

   The first investigator responding to a report of child abuse or sexual abuse shall refer the child victim for an emergency medical examination.

   Commentary

   The evidence from a medical examination may provide the only corroboration for a successful prosecution of the case. The examination provides documentation of the event and any findings.

2. Forensic Interviewing Procedures to Reduce Trauma to Children. Whenever possible, interviews of child victims and witnesses should be conducted by personnel properly trained in the techniques designed to best elicit truthful information from a child while minimizing additional trauma to the child.

   Commentary

   A forensic interview is a critical part of the investigative process. It is conducted to gather factual information from a child to determine if that child was the victim of a crime or if that child witnessed a crime against another person. A forensic interview should not be confused with a therapeutic interview that is conducted as part of an assessment by a mental health professional for the purpose of designing and providing treatment to a child victim. A forensic interview should be age and developmental level appropriate.

3. Multidisciplinary Child Abuse Teams
   1. Definition. A multidisciplinary child abuse team is a professional unit composed of representatives from health, social service, law enforcement, and legal service agencies to coordinate the assistance needed to handle cases of child abuse. (18 U.S.C. § 3509(a)(7))

   2. A multidisciplinary child abuse team shall be used when it is feasible to do so. (18 U.S.C. § 3509(g)(1))

      Commentary

      The purpose of multidisciplinary teams is to maintain the credibility and reliability of the child's testimony as well as to monitor the child's safety and well-being throughout the case. The goals of the multidisciplinary team are (1) to minimize the number of interviews to which the child is subjected to reduce the risk of suggestibility in the interviewing process; (2) to provide needed services to the child; and, (3) to monitor the child's safety and well-being.

      Justice Department personnel should use existing multidisciplinary teams in their local communities. Law enforcement personnel are encouraged to bring other professionals into the teams. Local laws and guidelines concerning the teams may vary, and Federal personnel should become familiar with the local provisions. If no multidisciplinary team is in place in a particular community, Justice Department personnel should develop a team.

   3. Role of Multidisciplinary Child Abuse Teams. The role of the multidisciplinary child abuse team shall be to provide for child services that the members of the team in their professional roles are capable of providing, including
      1. Case service coordination and assistance, including the location of services available from public and private agencies in the community. (18 U.S.C. § 3509 (g)(2)(F)) (see Commentary below)

      2. Medical diagnoses and evaluation services, including provision or interpretation of x-rays, laboratory tests, and related services, as needed, and documentation of findings. (18 U.S.C. § 3509(g)(2)(A))

      3. Telephone consultation services in emergencies and in other situations. (18 U.S.C. § 3509(g)(2)(B))

      4. Medical evaluations related to abuse or neglect. (18 U.S.C. § 3509(g)(2)(C))

      5. Psychological and psychiatric diagnoses and evaluation services for the child, parent or parents, guardian or guardians, or other caregivers, or any other individual involved in a child victim or witness case. (18 U.S.C. § 3509(g)(2)(D))

      6. Expert medical, psychological, and related professional testimony. (18 U.S.C.§ 3509(g)(2)(E)

      7. Training services for judges, litigators, court officers and others that are involved in child victim and child witness cases, in handling child victims and child witnesses. (18 U.S.C. § 3509(g)(2)(G))

      Commentary

      The statutory and guidelines references to "case service coordination and assistance" and "services available from public and private agencies in the community" mean victim assistance services such as child support services, court schools for children, and other similar services.

4. Privacy Protections for Child Victims and Witnesses (18 U.S.C. § 3509(d)). During the investigation of a case involving child victims or witnesses, Justice Department personnel should scrupulously protect children's privacy in accordance with 18 U.S.C. § 3509(d) and these guidelines. (see Art VI.B.1)

1. Consultation With Multidisciplinary Teams. Federal prosecutors and victim witness personnel shall use multidisciplinary child abuse teams when it is feasible to do so. The attorney for the Government shall consult with multidisciplinary child abuse teams as appropriate. (18 U.S.C. § 3509(g)(1))

2. Privacy Protections for Child Victims and Witnesses (18 U.S.C. § 3509(d)). During the prosecution of a case involving child victims or child witnesses, Justice Department personnel should scrupulously protect children's privacy in accordance with 18 U.S.C. § 3509(d) and these guidelines. (see Art. VI.B.1.)

3. Closing the Courtroom (18 U.S.C. § 3509(e)). When a child testifies, the court may order the exclusion from the courtroom of all persons, including members of the press, who do not have a direct interest in the case. Such an order may be made if the court determines, on the record, that requiring the child to testify in open court would cause substantial psychological harm to the child or would result in the child's inability to effectively communicate. An order to close the courtroom shall be narrowly tailored to serve the Government's specific compelling interest.

   Commentary

   Federal prosecutors should consider consulting an expert when evaluating whether testifying in open court may cause a child "substantial psychological harm." A "narrowly tailored" order contemplates the least restrictive provisions necessary to minimize future victimization of the child while insuring the defendant's rights.

4. Speedy Trial (18 U.S.C. § 3509(j)). In a proceeding in which a child is called to give testimony, on motion by the attorney for the Government, or a guardian ad litem, or on its own motion, the court may designate the case as being of special public importance. In cases so designated, the court shall expedite the proceeding and ensure that it takes precedence over any other. The court shall ensure a speedy trial to minimize the length of time the child must endure the stress of involvement with the criminal process. When deciding whether to grant a continuance, the court shall take into consideration the age of the child and the potential adverse impact the delay may have on the child's well-being. The court shall make written findings of fact and conclusions of law when granting a continuance in cases involving a child.

5. Stay of Civil Action (18 U.S.C. § 3509 (k)). If, at any time that a cause of action for recovery of compensation for damage or injury to the person of a child exists, a criminal action is pending which arises out of the same occurrence and in which the child is the victim, the civil action shall be stayed until the end of all phases of the criminal action, and any mention of the civil action during the criminal proceeding is prohibited. A criminal action is pending until its final adjudication in the trial court.

6. Competency (18 U.S.C. § 3509(c))
   1. Presumption. A child is presumed to be competent. (18 U.S.C. § 3509(c)(2) (see also, Rule 601, Federal Rules of Evidence))

   2. Requirements of Written Motion and Compelling Reasons. The court may conduct a competency examination of a child witness only upon written motion and offer of proof of incompetency by a party. To hold an examination, the court must determine on the record that compelling reasons exist. A child's age alone is not a compelling reason. Psychological and psychiatric examinations to assess the competency of a child witness shall not be ordered without a showing of compelling need. (18 U.S.C. §§ 3509(c)(3), (4), and (9))

   3. Conduct of the Examination. A competency examination regarding a child witness shall be conducted out of the sight and hearing of a jury. Only persons listed in 18 U.S.C. § 3509(c)(5) are permitted to be present. Direct examination of the child shall normally be conducted by the court on the basis of questions submitted by the attorney for the Government and the attorney for the defendant, including a party appearing pro se. The court may permit an attorney, but not a party appearing pro se, to examine a child directly on competency, if the court is satisfied that the child will not suffer emotional trauma as a result of the examination. (18 U.S.C. §§ 3509(c)(5), (6), and (7)) The court is required to ask questions as explained in 18 U.S.C. § 3509 (c)(8).

   Commentary

   Title 18 U.S.C. § 3509(c)(7) gives the court the discretion to allow the Government attorney to examine the child during the competency hearing if the court is satisfied that the child will not suffer emotional trauma as a result of the examination. Federal prosecutors should consider making this request of the court because in many instances questioning by a familiar person may be less traumatic for the child. Prosecutors should, however, be aware that defense attorneys likewise may make such a request.

7. Adult Attendant (18 U.S.C. § 3509(i)). A child testifying at or attending a judicial proceeding has the right to be accompanied by an adult attendant to provide emotional support to the child. (18 U.S.C. § 3509(i))

   Commentary

   The statute permits the court, at its discretion, to allow the adult attendant to remain in close physical proximity to or in contact with the child while the child testifies. The court may allow the adult attendant to hold the child's hand or allow the child to sit on the adult attendant's lap throughout the course of the proceeding. The adult attendant shall not provide the child with an answer to any question directed to the child during the course of the child's testimony or otherwise prompt the child. The image of the adult attendant, for the time the child is testifying by closed-circuit television or being deposed, shall be recorded on videotape contemporaneously with the image of the child. (18 U.S.C. § 3509(i)) Federal prosecutors should inform children and their guardians of this right and facilitate its implementation.

8. Testimonial Aids (18 U.S.C. § 3509(l)). The court may permit a child to use anatomical dolls, puppets, drawings, mannequins, or any other demonstrative device the court deems appropriate for the purpose of assisting a child in testifying.

   Commentary

   Federal prosecutors have a wide variety of demonstrative devices to choose from to assist children in testifying. Prosecutors should use their sound judgment in deciding which device to use. Some devices, such as anatomical dolls, should only be used after training on their proper use and careful consideration of the case law regarding their use.

9. Alternatives to Live, In-Court Testimony by Child Victims (18 U.S.C. § 3509(b))
   1. Reasons. Federal prosecutors may use certain alternatives (that is, closed-circuit television and videotape depositions) to live, in-court testimony in cases involving offenses against children, where the court finds that the child is unable to testify in open court for any of the following reasons:
      1. The child is unable to testify because of fear.

      2. There is a substantial likelihood, established by expert testimony, that the child would suffer emotional trauma from testifying or testifying in open court.

      3. The child suffers a mental or other infirmity.

      4. Conduct by defendant or defense counsel causes the child to be unable to continue testifying.

      (18 U.S.C. §§ 3509(b)(1)(B)(i) - (iv) and (b)(2)(B)(i)(I) - (IV))

   2. Who may apply. In a proceeding involving an alleged offense against a child, the following persons may apply to the court for an order for an alternative to live, in-court, testimony: the attorney for the Government; the child's attorney; a guardian ad litem; and the child's parent or legal guardian (videotaped depositions only). (18 U.S.C. § 3509(b)(1)(A) and (b)(2)(A))

   3. Child Victims' Live Testimony by 2-Way Closed-Circuit Television (18 U.S.C. § 3509(b)(1))
      1. Timing. The person seeking the order shall apply for the order at least 5 days before the trial date, unless the court finds on the record that the need for such an order was not reasonably foreseeable.

      2. Preliminary findings. The court shall support a ruling on the child's inability to testify with findings on the record. In determining whether the impact on an individual child (of one or more of the factors/reasons listed in 9.a. above) is so substantial as to justify an order allowing testimony by closed-circuit television, the court may question the child in chambers, or at some other comfortable place other than the courtroom, on the record for a reasonable period of time, with the child attendant, the prosecutor, the child's attorney, the guardian ad litem, and the defense counsel present.

      3. Conduct of the televised proceeding. If the court orders the taking of the child's testimony by closed-circuit television, the attorney for the Government and the attorney for the defendant (not including a defendant appearing pro se) shall be present in a room outside the courtroom with the child and the child shall be subjected to direct and cross-examination. The only other persons who may be permitted in the room with the child during the child's testimony are the child's attorney or guardian ad litem; persons necessary to operate the closed-circuit television equipment; a judicial officer, appointed by the court; and other persons whose presence is determined by the court to be necessary to the welfare and well-being of the child, including an adult attendant, as described in 18 U.S.C. § 3509 (i).

         The child's testimony shall be transmitted by closed-circuit television into the courtroom for viewing and hearing by the defendant, jury, judge, and public. The defendant shall be provided with the means of private, contemporaneous communication with the defendant's attorney during the testimony. The closed-circuit television transmission shall relay the defendant's image and the voice of the judge into the room in which the child is testifying.

   4. Videotape Deposition of Child Victims (18 U.S.C. § 3509(b)(2)). A court may issue an order that a deposition be taken of the child's testimony and that the deposition be recorded and preserved on videotape. If at the time of trial the court finds that the child is unable to testify for the reasons set out above, the court may admit into evidence the child's videotaped deposition in lieu of the child's testifying at the trial. (18 U.S.C. § 3509(b)(2)(C))
      1. Preliminary finding. Upon receipt of an application for a videotaped deposition, the court is required to make a preliminary finding regarding whether at the time of trial the child is likely to be unable to testify in open court in the physical presence of the defendant, jury, judge, and public for any of the reasons listed in 9.a. above. If the court finds that the child is likely to be unable to testify in open court for any of these reasons, the court shall order that the child's deposition be taken and preserved by videotape.

      2. Conduct of the deposition. The trial judge shall preside at the videotape deposition of a child and shall rule on all questions as if at trial. The only other persons who may be permitted to be present at the proceeding are the attorney for the Government; the attorney for the defendant; the child's attorney or guardian ad litem; persons necessary to operate the videotape equipment; the defendant, subject to 18 U.S.C. § 3509(b)(2)(B)(iv); and, other persons whose presence is determined by the court to be necessary to the welfare and well-being of the child, including an adult attendant, as described in 18 U.S.C. § 3509(i).

      3. Defendant's rights. The defendant shall be afforded the rights applicable to defendants during trial, including the right to an attorney, the right to be confronted with the witness against the defendant, and the right to cross-examine the child. (18 U.S.C. § 3509(b)(2)(B)(iii) and (iv))

      4. Procedures for handling and preserving the videotape. Procedures for handling and preserving the child's videotape deposition are listed in 18 U.S.C. §§ 3509 (b)(2)(B)(v) and (b)(2)(F).

      5. In connection with the taking of a videotaped deposition, the court may enter a protective order to protect the privacy of the child. (18 U.S.C. § 3509(b)(2)(E))

10. Victim Impact Statement (Fed.R.Crim.P. 32(b)(4)(D) and AG Guidelines, Art. IV. B.3.a.). The AG Guidelines concerning Victim Impact Statements appearing in Article IV. B.3.a. herein, apply equally to cases in which children are victims and witnesses.

    Responsible officials should obtain and report to the probation officer accurate information concerning a child's victimization. Children can prepare Victim Impact Statements. Child Victim Impact Statements should be in an age appropriate format that permit the child to express the child's views concerning the personal consequences of the child's victimization at a level and in a form of communication commensurate with the child's age and ability.

11. Sentencing (F.R.Crim.P. 32 and AG Guidelines Art. IV.B.3.b.). Consistent with available resources, other responsibilities, and prosecutorial and law enforcement priorities, Federal prosecutors should advocate the interests of victims, including child victims, at the time of sentencing.

    As with adult victims, if a sentence is to be imposed for a crime of violence or sexual abuse, at the earliest opportunity and within sufficient time for the victim to prepare a statement that can be presented at sentencing, the responsible official should notify the victim by available and reasonable means of the victim's right to address the court at sentencing and of the date, time, and place of the scheduled hearing. If the victim is present and if the victim wishes to make a statement at the sentencing, Federal prosecutors should advocate to the court the right of a victim of a crime of violence or sexual abuse to make a statement or present information in relation to the offender's sentence. (see F.R.Crim.P. 32(c)(3)(D) and (E))

    Regardless of whether the victim is present, the right of allocution defined above may be exercised instead by a parent or legal guardian of the victim who is present at the sentencing hearing if the victim is below the age of eighteen (18) years or is incompetent. (see F.R.Crim.P. 32(f)(1)(A)) If the victim is deceased or incapacitated, this right of allocution by the victim may be exercised by one or more family members or relatives designated by the court and present at the sentencing hearing. (see F.R.Crim.P. 32(f)(1) (B))

    Commentary

    To provide the probation officer with the most useful and accurate information possible, responsible officials should request information from the multidisciplinary child abuse team and other appropriate sources to determine the impact of the offense on the child victim and any other children who may have been affected.